Some of the Things Federal Agencies Can Do to Address Climate Change

Current federal law provides many ways to reduce greenhouse gas emissions, even without a friendly senate

As the likelihood grows that the United States will have a new president who will preside over a divided government, and various policy think tanks line up to offer suggestions for effective action on various important issues, it seems like the right time to shine a light once again on a series of reports issued by Berkeley Law’s Center for Law, Energy and the Environment (CLEE) in 2014.

The three-volume series is entitled “Addressing Climate Change Without Legislation” and focuses on actions that could be taken by the Department of the Interior, the Department of Agriculture, and the Federal Energy Regulatory Commission (FERC). It was the FERC report, the production of which was encouraged by now-Oregon Law Professor Greg Dotson, that garnered the most attention at the time.

CLEE found that FERC could take several significant steps to address climate change that are consistent with its existing legislative mandate. Most prominently, the report discussed ways in which FERC could approve a “carbon adder” to reflect the cost of greenhouse gas emissions within prices offered in competitive wholesale power markets. It also talked about ways that FERC could and should consider climate impacts when reviewing proposed fossil fuel pipelines and other projects pursuant to the National Environmental Policy Act (NEPA). And among other things, it discussed ways that already-required regional electric transmission plans could become integrated plans that could consider the full range of options for meeting energy needs and effectively reducing greenhouse gas emissions.

After issuance of the report, numerous actors responded in various ways. The U.S. House of Representatives held a hearing on the report, with all then-sitting FERC commissioners in attendance, and the report was entered into the Congressional record. A number of additional scholars have added to the literature in this area. Several wholesale electric market operators, including the New York Independent System Operator and the independent system operator called PJM, began the lengthy process of considering the adoption of a carbon adder for their markets. Neil Chatterjee, who until last week served as the chairman of FERC, expressed a willingness to consider approving a carbon adder. This may have been a contributing factor in the president’s sudden decision to deprive him of his title as chairman.

Meanwhile, there have since been successful legal challenges based on FERC’s failure to consider climate impacts while implementing NEPA.

These and other recommendations contained in the FERC report continue to be relevant. In fact, researchers at NYU Law’s Institute for Policy Integrity repeated most of these recommendations in a report it issued this past September.

Keeping in mind the challenges that the president-elect is facing in mounting a full transition process and the normal lag brought on by a transfer of power, it will be some time before a Biden team can fully consider recommended policy paths from reports such as these (and there are many, including the ambitious Legal Pathways to Deep Decarbonization in the United States). Clearly, centers such as CLEE, in our vast network of public and private universities, stand ready to provide the factual and conceptual foundations for action.

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About Steven

Steve established and directed the Energy Law Program at Berkeley Law. He is currently a Lecturer at the Goldman School of Public Policy.…

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